B.L. Hansaria, J. 1. It is said that one swallow does not ordinarily make a summer. So also one prejudicial act cannot ordinarily form the basis of a preventive detention order. But there are exceptions to both the rules. In the present petition we are called upon to see as to what those exceptions are; and when can detention order be founded on a solitary instance of prejudicial activity.2. Before adverting to this aspect, it may be stated that an order of detention is essentially a precau

Excerpt:.....potentiality for continuing criminality and indicate previous practice, experiment and expertise. 'single or solitary incident' cases are difficult and exceptional in that prognosis of the future behaviour of the detenu on the part of the detaining authority becomes more subjective in an area in which the law recognized authority's 'subjective satisfaction' itself to be subjective. same position, in my opinion should obtain in cases where the offensive activity is alleged to be 'planned and premeditated' within the meaning of rule (5). a mere bald denial in the return of 'non application of mind''should not in rny opinion be regarded as discharge of its duty by the detaining authority. as neither the grounds, nor the order, nor even the return, disclose proximate or immediate mischief,..........the conclusion that no criminal propensities for wagon breaking could reasonably be inferred from single solitary act. it was, however, made clear that it was not their lordships' view that in no case solitary act could form the basis for reaching a satisfaction that the person concerned might repeat such act. it was pointed out that 'the nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained. would be likely to indulge in commission of such act in future.'6. debu mahto was relied on in saraswathi v. state of kerala : air1982sc1165 ; and the two tests : (1) nature of the act; and (2) the attendant circumstances were accepted as relevant in this regard. while applying these tests, the.....

Judgment:

B.L. Hansaria, J.

1. It is said that one swallow does not ordinarily make a summer. So also one prejudicial act cannot ordinarily form the basis of a preventive detention order. But there are exceptions to both the rules. In the present petition we are called upon to see as to what those exceptions are; and when can detention order be founded on a solitary instance of prejudicial activity.

2. Before adverting to this aspect, it may be stated that an order of detention is essentially a precautionary measure and is not a punishing device. In law there is a distinction between 'prevention detention' and 'punitive detention.' This was highlighted by the Supreme Court in Francis Coralie AIR 1981 SC 746 : 1981 Cri LJ 306, A.K. Roy v. Union of India : 1982CriLJ340 , where it has also said that 'whatever smacks of punishment has to be scrupulously avoided in matters of preventive detention '(See para 74)

3. It is true that the precautionary measure of detaining a person is based on a prognosis of the future behaviour of the person based on this past conduct. So, it is the past conduct on the basis of which the future pattern of behaviour is projected and preventive detention law is used to prevent a person what he is likely to do if not detained. It may be conceded at this stage that the type of analysis undertaken by the Courts in this regard would suggest that the subjective satisfaction is being tested on the anvil of objective determination the dividing limo is, nonetheless, there, though it might have become blurred or faint in this zone.

4. There is no dispute in law so far the question is whether it would be reasonable to ground a detention order on the basis of a solitary instance. To put it differently, whether the satisfaction based on a single prejudicial activity could be held as real and germane, or whether such a satisfaction will speak of non-application of mind. The Supreme Court itself had occasion to examine this aspect in a number of cases in some of these detention orders on the basis of even one act were upheld, and in the other, the same were set aside.

5. The first decision on this point seems to be that of Debu Mahto v. State of West Bengal : 1974CriLJ699 . The single act attributed to the petitioner in that case was of wagon breaking. Though effort was made to impress upon the Court that wagon breaking was becoming a menacingly frequent crime which was seriously affecting movement of essential commodities' the Court was not satisfied about this aspect as nothing was said about it in the affidavit filed by the District Magistrate. In the circumstances of the case, the Court came to the conclusion that no criminal propensities for wagon breaking could reasonably be inferred from single solitary act. It was, however, made clear that it was not their Lordships' view that in no case solitary act could form the basis for reaching a satisfaction that the person concerned might repeat such act. It was pointed out that 'the nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained. would be likely to indulge in commission of such act in future.'

6. Debu Mahto was relied on in Saraswathi v. State of Kerala : AIR1982SC1165 ; and the two tests : (1) nature of the act; and (2) the attendant circumstances were accepted as relevant in this regard. While applying these tests, the Court was satisfied that the act in question was an index of future conduct inasmuch as what the detenu had done in that case was an attempt to export Indian currency to the tune of Rs. 2,88,900/- to a foreign country in a planned and premeditated manner by clear concealment of it in several parts of his baggage. The Court therefore felt that the authority was fully justified in coming to the conclusion that the detenu might repeat this illegal act in future also and that the detention was necessary to prevent him from repeating the same in future.

7. We may now refer to other cases where orders of detention were upheld though grounded on a solitary incident. In Anil Dey v. State of West Bengal : 1974CriLJ702 the prejudicial act was theft of railway signal materials, feed and transformers. The Court stated that the act of the above type required a certain measure of technical skill and electrical expertise. It was then stated (Para 7):

The technical talent, functional perversity and conveyor-belt system of collaborating instrumentalities are all implied in the episode of removal of extremely complicated parts referred to in the ground set out. This single act cannot live in isolation and necessarily connotes a course of previous conduct whereby some specialisation has been acquired, some specialised agencies have been fabricated and some special mischief had been planned to be perpetrated.

(Emphasis ours)

The same Bench took the same view in Madhab Roy v. State of West Bengal : 1974CriLJ1335 wherein it was concerned with theft of copper return feeder wires from Railway tractions. The Bench this time speaking through Bhagwati, J., (the earlier pronouncement being through Krishna Iyer, J.) observed that (Para 2)

Cutting and removal of copper return feeder wires is a sophisticated and complex operation which requires technical skill and expertise and is not the work of a layman or a novice. It postulates experience acquired as a result of a course of such or similar activities and also suggest that it is a part of an organised activity of 'a complex of agencies collaborating to remove, secrete and sell' such stolen goods. This activity has very serious and disturbing consequences and it can well be part of a plan of sabotage which brings to a grinding halt the movement of trains.

(Underscoring by us)

8. A contrary view was, however, taken in a similar situation in Lal Kamal v. State of West Bengal : AIR1975SC753 . Allegation therein was that the detenu had committed theft of anti-creep wire from the Railway installation. The Court observed that the past activity on the basis of which a prognosis about future behaviour can be made must be reasonably suggestive of a repetitive tendency or inclination on the part of the detenu to act likewise in future. The simple, solitary incident of theft, without anything more was not accepted as suggestive of such a tendency, as it had not even been alleged that the commission of theft was accompanied by violence or show of force nor also that it was committed openly or in a daring fashion by overawing or overcoming resistance from any quarter.

9. We may note two other decisions of apex Court before coming to the facts of the case on hand. The one is in Gora v. State of West Bengal : 1975CriLJ429 (which was approved in Gandhi Sardar v. Union of India : 1975CriLJ633 , wherein the grounds referred only to one incident of raid with lethal weapons on the house of one individual accompanied by loot, brutal assault etc., It was stated that:

(i) the prejudicial act of the detenu may in the given case be of such a character as to suggest that it is a part of an organised operation of complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act but must be part of a course of conduct of such or similar activities ...and it is therefore necessary to detain him with a view to preventing him from indulging him in the future.

(Emphasis supplied).

10. Lastly, we may refer to Babulal v. State of West Bengal : 1975CriLJ585 which saw detention because of one armed dacoity in a running train resulting in loss to property and injury to person. The case was - Iyer J. stating thus in para 2:

2. The Court has been vigilant to see that isolated offences are not exploited by executive authorities for clamping down preventive detention insouciantly to by-pass the normal judicial processes. But there is one exceptional category of cases where only dangerous deviance may itself demonstrate its potentiality for continuing criminality and indicate previous practice, experiment and expertise. In such a narrow category of cases it is difficult to predicate abuse of power or absence of application of mind by the authority if preventive detention is directed solely on one specialised crime.

(Emphasis ours)

11. The following guidelines or indicia may be culled from the aforesaid cases:

(1) The Court must see the nature of the act and the attendant circumstances. In particular it has to see whether the single act is only a 'tip of the iceberg'' as stated by the learned Government Advocate, or there is nothing more than what meets the eye.

(2) If the act in question be a part of organised activity. it may reasonably be inferred that the person concerned is likely to repeat the same.

(3) Similarly. if the activity be reasonably suggestive of a repetitive tendency or were to indicate a course of conduct a single swallow may make summer.

(4) If the activity demonstrates potentiality of continuing criminality, the same may find the connected person inside the prison even under preventive detention laws.

(5) So too, if the activity was to show that it is planned and premeditated, a single solitary incident may suffice.

(6) If the action be undertaken by a habitual and hardened criminal, one instance may sufficiently indicate his mind to repeat the same.

(7) If it be result of any technical skill, past experience, expertise, the tendency to use the same for a similar purpose may be reasonably inferred.

12. The grounds of the present case may now be noted:

1. On the morning of 8th February 1983. you intimidated the willing drivers who took out their vehicles for duty for Oil India Dulijan with dire consequences if they drove their vehicles since other employees of Oil India were not cooperating. As a result of your action drivers of all contractors' vehicles connected with jobs of the Oil India ceased to work from that morning leading to disruption of work of Oil India.

13. Let us apply the above test to the aforesaid ground and see the result. The petitioner is attached to a business firm: Apex Carrying Company as appears from the detention order. He is not a hardened criminal. The activity was not suggestive. without anything more, of a repetitive tendency, nor was it a result of any expertise, nor could one read the activity as a part of course of petitioner's conduct. It cannot be said to be preplanned. The nature of the act is therefore not of the type on which detention order could be reasonably founded. The attendant circumstances cannot also be forgotten. As is known, these activities appeared on the scene in a big way in the wake of the decision of holding the election against the wishes of the movement leaders. The election being practically over and the movement itself having been suspended, albeit temporarily, the attendant circumstances also weigh now in favour of the detenu. though at one point of time these might have tilted the balance against him.

14. Shri Bhattacharjee had another submission to make and the same related to the vagueness in the ground inasmuch as the same contained no name at all of any 'willing driver' or of driver of any contractors vehicle's, or of 'other employees of 0 1 India.' The Government Advocate himself felt that the ground may perhaps have to be regarded as vague.

15. After having heard the counsel for the parties on 31-3-1983. we had ordered for the release of the detenu for the reasons (1) that the satisfaction in the instant case was the result of non-application of full mind (2) the solitary ground was vague. We place these reasons now on record.

T.N. Singh, J.

16. I benefited immensely reading the educative and elaborate judgment of my learned brother, buttressed as it is, with copious extracts from the observations made on the point from time to time by the apex Court. I concurred in the operative order passed on 31-3-1983 releasing the detenu. By this small note of mine I concur also in the conclusion arrived at in the leading judgment. I write not to add any rider to the lucid formulations ('guidelines or indicia') which my learned brother has carefully tabulated, I propose only to add my own reasons which may perhaps result in marginal augmentation of. the corpus of the formulations. This is because I see no reason to depart from the view I took in Prafullakumar Mahanta's case see (1983) 1 Gauhati LR 231 : (reported in 1984 Cri LJ 454 that any administrative act qua order of preventive detention is amenable to judicial scrutiny according to established principles of administrative law. Indeed, although the apex Court has not spelt out this judicial policy in express term the views of the Court to which I shall refer in this judgment lend support to the proposition which appealed to me in holding so in that case.

17. When exceptions are carved out in such matters from a rule which is itself an exception, the need for precision assures greater importance. 'Single or solitary incident' cases are difficult and exceptional in that prognosis of the future behaviour of the detenu on the part of the detaining authority becomes more subjective in an area in which the law recognized authority's 'subjective satisfaction' itself to be subjective. Duty to act reasonably in such cases on the part of the authority thus becomes acutely essential as possibility looms large in such cases of abuse of power. On a priori consideration, therefore, the rule of ultra vires or even the constitutional mandate or Article 21 of fair and just procedure invariably comes into play in such cases and a duty is enjoined on the Court to test 'application of mind' of the detaining authority with greater care and caution which, by implication. imposes a consequent duty on the detaining authority to satisfy the Court that its satisfaction was real and rational. This position has been recognised by the apex Court itself, albeit. in general terms, in Prabhudayal's case : 1974CriLJ286 and even before that in Mintu Bhakta's case AIR 1972 SC 2132 at page 2134 para 9. This principle found further development in Khudiram's case ( : [1975]2SCR832 . At page 558, para 10 of the report, in dealing with particularly with 'single-solitary incident 'cases, the Court carefully stressed the need of recognising the existence of the 'dividing line' which, indeed, was 'faint and delicate', on considerations based on review of administrative action. A reference to the recent decision of their Lordships in Yumnam Mangibabu's case : 1983CriLJ445 also shows that this case too in hers the same principles, which find reflected in the extract which their Lordships quoted in that judgment from Khudiram's case. As one sentence of the same passage which does not appear in the above extract but is more relevant in the context of the present discussion, the same is quoted below.

The Court is entitled to examine the correctness of the statement and determine for itself whether there were any other basic facts or materials apart from those admitted by it which could have reasonably influenced the decision of the detaining authority and for that purpose the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it.

(Emphasis added)

In Ichudevi's case : [1981]1SCR640 this principle was further buttressed saying, 'the burden of showing that the detention is in accordance with the established procedure has always been placed by the Court on the detaining authority', by virtue indeed of Article 21. Application of real and rational satisfaction according to me, is also a part of 'established procedure'.

18. In view of this legal position, I feel constrained to hold that the materials appertaining to the 'attendant circumstances' of Rule (1) of the tabulated formulations, if such materials do not nppear on the face of the ground, must be placed before the Court to satisfy itself that the satisfaction of the detaining authority was real and rational. For, the nature of the act merely would not. per se, in my opinion, indicate such satisfaction and compliance, therefore, with the said rule. Same position, in my opinion should obtain in cases where the offensive activity is alleged to be 'planned and premeditated' within the meaning of Rule (5). A mere bald denial in the return of 'non application of mind'' should not in rny opinion be regarded as discharge of its duty by the detaining authority. Indeed, in what cases inferences can be 'reasonably' drawn have been carefully and categorically pointed out by any learned brother. Thirdly and finally, in my opinion, the term 'single and solitary incident' itself needs an explanation. It should not be the mischief itself but should be independent of the mischief which is sought to be prevented. It is necessary because a distinction must be made between such cases and 'no antecedent cases. Very often the same activity or incident appear in the grounds both as an antecedent and as the proximate or immediate mischief (the particular preventive object as distinguished from the statutory objective).

19. With these observations I concur to say that I am in respectful agreement with the views expressed by my learned brother and I agree with him to hold that in this case non-application of mind is writ large on the face of the ground. Because, in my opinion, 'the attendant circumstances' have not been placed before us.

20. Having said so, however, I feel impelled to enter a caveat on a particular aspect of this case. As neither the grounds, nor the order, nor even the return, disclose proximate or immediate mischief, in express terms, it is not permissible, in my opinion, for the Court to infer, without any material, that the offensive activity of the detent was connected with 'the holding of election against the will of the movement leaders'. It is true that any service connected with such 'elections' are referred to in Clause (xv) of the Government Notification of 8-2-1982, but in the instant case, in the grounds the mischief sought to be prevented is, in categorical terms, mentioned as 'disruption of work of Oil India' of which, care, albeit, is taken by Clause (xii) thereof. The legal position which has a general bearing on this aspect of the matter has also been dealt. with by me in Prafulla Mahanta's case 1984 Cri LJ 453(supra) at paragraphs 9 and 12 of the report.